A recent interim decision of the Ontario Human Rights Tribunal addressed whether a miscarriage could constitute a disability for the purposes of human rights legislation.

In Mou v. MHPM Project Leaders, the applicant alleged that her employer had discriminated against her with respect to disability, contrary to the Human Rights Code. She alleged that she had been fired in February 2014 due to disabilities she suffered in 2013.

Specifically, the applicant’s employment had been affected by a slip and fall accident in early 2013, followed by a miscarriage in June. She had taken time off work as a result of both of these incidents and her performance had been affected.

The applicant’s employer requested that the application be dismissed on the basis she had not established that she suffered from an actual disability.

After ruling that the applicant’s slip and fall accident and subsequent months of recovery had constituted a disability, the Tribunal addressed the novel issue of whether her miscarriage would also fall within the definition of a disability.

While commonplace, transient conditions, such as colds and flus, have been found not to constitute disabilities, permanence is not a prerequisite for establishing a disability.

The case-law reviewed emphasized the need to consider both the medical condition itself and contextual factors, to determine whether an actual or perceived ailment caused the “loss or limitation of opportunities to take part in the life of the community on an equal level with others.”

In this case the Tribunal held that the applicant’s miscarriage was a disability, finding that it “is not a common ailment, and it is certainly not transitory. It is clear from the applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today.”

The Tribunal further noted that a miscarriage may fall at the intersection of human rights protections on the grounds of disability and of sex.

This application of human rights protection to an employee’s experience of a miscarriage demonstrates the breadth of what may constitute a disability and of the obligation on employers to accommodate employees with respect to, not just pregnancy and maternity, but to related issues.

By Michelle Stephenson, Student-at-Law and Marty Rabinovitch

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Devry Smith Frank LLP (DSF) is the largest full service law firm in Toronto outside of the downtown core. They offer a broad range of legal services to individual, business and corporate clients in most areas of corporate and personal law. Their firm’s employment law group covers a broad spectrum of HR law, including employment and labour law, occupational health & safety, human rights, workers’ compensation and much more.Lawyers at Devry Smith Frank LLP lead by Marty Rabinovitch B.A.H., LL.B. will be covering issues surrounding employment and labour law and human rights on First Reference Talks. They also provide training, seminars and conferences on the above topics. Read more .